Commercial News, The

THE COMMERCIAL NEWS 293 Northwestern Publishing Company d/b/a The Com- mercial News and Danville Printing and Graph- ic Communications Union No. 257. Case 33- CA-5294 June 2, 1981 DECISION AND ORDER Upon a charge filed on February 20, 1981, by Danville Printing and Graphic Communications Union No. 257, herein called the Union, and duly served on Northwestern Publishing Company d/b/a The Commercial News, herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 33, issued a complaint on March 3, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on December 15, 1980, following a Board election in Case 33- RC-2671, the Union was duly certified as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about February 16, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On March 9 and 17, 1981, Respondent filed its answer and amended answer, respectively, to the complaint ad- mitting in part, and denying in part, the allegations in the complaint, and requesting that the complaint be dismissed. On March 23, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 31, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed an answer to the Motion for Sum- mary Judgment. I Official notice is taken of the record in the representation proceed- ing, Case 33-RC-2671, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosysrems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 256 NLRB No. 48 Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its amended answer to the complaint and in its answer to the Motion for Summary Judgment, Re- spondent admits the request and refusal to bargain, but contests the validity of the Board's certification in the underlying representation proceeding. Re- spondent contends that the Board did not properly consider the supervisory status of the employees in the unit, and that the Board's unit determination is legally invalid.Review of the record, including the record in Case 33-RC-2671, shows that on No- vember 7, 1980, after a hearing in which Respond- ent participated, the Acting Regional Director issued a Decision and Direction of Election in which he found appropriate the Union's requested unit of Respondent's motor route drivers, bundle haulers, and truckdrivers. Thereafter, Respondent filed a request for review of this decision, alleging that the unit found appropriate was comprised of supervisors. On December 4, 1980, approximately 1 hour before the polls opened, the Board telephoni- cally notified the Regional Office that the request for review was denied. The Board agent conduct- ing the election thereupon notified Respondent of this fact prior to the opening of the polls. By tele- gram dated December 5, 1980, the Board con- firmed its denial of Respondent's request for review. The Union won the election and Respondent filed objections, alleging in relevant part that the election was conducted in violation of the Board's rules because the request for review was still pend- ing and the ballots were not impounded. On De- cember 15, 1980, the Acting Regional Director issued a Supplemental Decision, in which he over- ruled Respondent's objections and certified the Union. No request for review was filed to this de- cision. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding. 2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein 2 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sees 102.67(f) and 102.69(c). THE COMMERCIAL NEWS 293 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation with an office and place of business in Danville, Illinois, is engaged in the business of publishing, printing, and distributing a newspaper known as The Commer- cial News. During a representative 12-month period, Respondent's gross volume of business was in excess of $200,000 and it held membership in or subscribed to interstate news services, published na- tionally syndicated features, and advertised nation- ally sold products. During this same period, Re- spondent purchased goods valued in excess of $50,000 directly from points located outside the State of Illinois. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Danville Printing and Graphic Communications Union No. 257 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All motor route drivers, bundle haulers, and truck drivers engaged in transporting and home delivery of daily newspaper published and distributed by the Employer at its Dan- ville, Illinois, facility; but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On December 4, 1980, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 33, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on December 15, 1980, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about February 13, 1981, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about February 16, 1981, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since February 16, 1981, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided THE COMMERCIAL NEWS 295 by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Northwestern Publishing Company d/b/a The Commercial News is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Danville Printing and Graphic Communica- tions Union No. 257 is a labor organization within the meaning of Section 2(5) of the Act. 3. All motor route drivers, bundle haulers, and truck drivers engaged in transporting and home de- livery of daily newspapers published and distribut- ed by the Employer at its Danville, Illinois, facili- ty; but excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since December 15, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about February 16, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Northwestern Publishing Company d/b/a The Commercial News, Danville, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Danville Printing and Graphic Communications Union No. 257 as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All motor route drivers, bundle haulers, and truck drivers engaged in transporting and home delivery of daily newspapers published and distributed by the Employer at its Dan- ville, Illinois, facility; but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Danville, Illinois, facility copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 33, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 33, in writing, within 20 days from the date of this I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." THE COMMERCIAL NEWS 295 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order, what steps have been taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Danville Printing and Graphic Communi- cations Union No. 257 as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All motor route drivers, bundle haulers, and truck drivers engaged in transporting and home delivery of daily newspapers pub- lished and distributed by the Employer at its Danville, Illinois, facility; but excluding office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. NORTHWESTERN PUBLISHING COM- PANY D/B/A THE COMMERCIAL NEWS